Divorce Divorce

Living in the State for 12 Months Prior to Filing

There are certain time frames that must be followed before a divorce can be filed in South Carolina.  In order to determine how long you must live in South Carolina prior to filing for divorce, the answer will depend on where both spouses reside.  The answer to this question is governed by South Carolina Code §20-3-30.  Specifically, it states as follows:

If Both Spouses Reside In South Carolina

If both you and your spouse live in South Carolina, then you must only prove that you both have lived in South Carolina for the three months leading up tot he commencement of the divorce action.

The Filing Spouse Lives in South Carolina But the Defendant Spouse is Not a Resident of South Carolina

If you want to file for divorce in South Carolina but your spouse is not a resident of this state, then you must prove that you have lived in South Carolina for 12 months before the commencement of the divorce action.

If the Filing Party is Not a Resident But the Defending Party is a Resident

If the filing party lives in another state but is filing for divorce in South Caroline because the defending party is a resident of South Carolina, the defending party who lives in South Carolina must have resided in South Carolina for more than one year prior to the filing of the action for divorce.

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Family Law 101 Family Law 101

The Other Side of the Coin - Getting into It

Ah, irony, you always add so much humor to my life.  This past weekend I experienced something new.  I was asked to officiate a wedding.  Not because of my polished public speaking skills, friendship with the bride and groom or because I am an ordained minister.  I'm not.  Basically, it came down to I was the guy everyone knew who was a South Carolina Notary Public.  Romantic, huh?So, while I was sick this weekend hoping I didn't mess up this couple's wedding day and hoping they didn't find out my days were spent as a divorce lawyer, I thought I should write a quick post about how you get into this thing called marriage.In South Carolina there are two ways: (1) the statutory marriage by marriage license and (2) the common law marriage.  Here's a quick run down of both:

The Statutory Marriage: Marriage License

Everyone is familiar with this way of getting married.  In fact, most people have been to at least one wedding and many have been in several weddings (as a groomsman or bridesmaid, of course).  This is where you stroll down to your county's probate court and fill out a marriage license application.  Wait 24 hours and return to pick up your completed license that will be signed by you and your wedding officiant after your ceremony.In order to get married in this manner in South Carolina you must be apply for a marriage license, have a ceremony performed by a minister of the Gospel, Jewish rabbi, or officer authorized to administer oaths in South Carolina such as a notary public.There are a few rules about who can get married in South Carolina as found in S. C. Code § 20-1-10 and some following sections:

  • The law prohibits those closely related by blood or marriage to marry one another.
  • Both parties must be mentally competent to marry one another so they can have the requisite intent to marry.
  • You can't get married when you are currently married to someone else.  This is known as bigamy.
  • You must be at least 16 years old.
  • Same sex marriages are not allowed in South Carolina.

The Common Law Marriage

"Yes," is the answer to your first question.  Common law marriage is still alive and kicking in South Carolina.  And most times causing huge problems and lawsuits. A common law marriage is where the couple is married because of their actions/lifestyle, not because they filed any legal paperwork or had a ceremony.  The paperwork and ceremony are not required in this case.After the first question, the second one is, "how long do we have to live together before we are considered to be common law married."  The answer is that there is no set time period for living together to be common law married.  Basically, you prove that both parties have an actual and mutual agreement to live publicly together as husband and wife.  Rogers v. Herron, 108 S.C. 271,  276 (1954).  There are several factors that when combined prove the intention to be common law married.  Here are the factors that must be proven for a common law marriage to be recognized:

  • Cohabitation with one another.
  • Hold yourself out as husband and wife.  This can be done by introducing each other as your husband/wife or by filing joint income taxes together and other things like this.
  • That there are no impediments such as age (under 16) or being currently married to another person.
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Reporting Alimony Received on Income Taxes

Alimony is a tricky issue in a divorce case.  Many people want it (or don't want to pay it) but the tax implications of alimony are important to note and consider in the negotiation of your divorce settlement.  In general, alimony is taxable income to the recipient and is a deduction for the payor.The Tax Girl, Kelly Phillips Erb, recently answered a question on her tax blog about claiming alimony on your income tax return.  It's a quick and short read, but provides some good guidance on the importance of claiming alimony received on your income tax return even if that is the only income you had for the year.

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Divorce Divorce

What is Collusion and How Does it Affect Me?

So you've probably heard about collusion before but usually between competing companies who are working together to keep their prices high or something along those lines.  But you may not have considered the impact of collusion on your divorce case. In South Carolina, collusion is a defense that can be used in divorce proceedings that will basically prevent a fault-based divorce from being granted.Merriam-Webster defines collusion as, "a secret agreement or cooperation especially for an illegal or deceitful purpose."S.C. Code §20-3-70 states,"[i]f it shall appear to the satisfaction of the court that the parties to any divorce proceeding colluded or that the act complained of was done with the knowledge or assent of the plaintiff for the purpose of obtaining a divorce the court shall not grant such divorce."So what does that mean?  If you and your spouse are contemplating a divorce and you find out that you do not have any fault-based grounds for divorce (physical cruelty, habitual drunkenness, or adultery) and you are going to have to live separate and apart for more than one year to get a divorce, you may try to come up with a plan where one spouse goes out and has an "affair" so you can move ahead and get your divorce quicker.  If this happens, it is likely that your divorce won't be granted because you and your spouse committed this action for the "purpose of obtaining a divorce."

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Custody at Issue in a Divorce when DSS already has Custody

Recently, I received this question on the blog:

My wife and I have a 15 month old daughter. She was removed from our custody by DSS on April 17, 2010. We signed over for my parents to get full custody of her about two weeks ago. I know we are not getting custody of our daughter back and have already been informed by DSS. Since I know there will not be a "custody" decision made for our daughter, do I still file having a child or not? My wife and i have been seperated since May 2010.Thank you for your help in this matter,Ryan S.

The reason custody must be included in a divorce when there are children of the marriage is so there will be a court order governing the placement, support and care of the children.  In this case, there is already a court order related to the minor child of your marriage so it is not necessarily an issue that would have to be dealt with in your divorce case unless you were going to fight for the child's return and custody given back to you.

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What to Expect from the Guardian ad Litem

South Carolina law requires that a Guardian ad Litem to be appointed in cases where the issues of child custody or child visitation are contested issues.  The Guardian ad Litem is typically an attorney (though it doesn't have to be) who represents the children in the matter and performs an investigation into both parties and the minor children.  One of the most important things the Guardians do is to prepare a report that is presented to all parties and to the Court that details the facts of their investigation, though it is not allowed to make a recommendation as to which party should be awarded custody.  So what should you expect when a Guardian ad Litem is appointed in your case? Here are some things that I do when I am appointed as Guardian ad Litem and from what I have witnessed other Guardians ad Litem do in my client's cases.As soon as a Guardian ad Litem has been appointed, the lawyers in the case will notify the Guardian and the Guardian will send the parents a questionnaire to complete and return. At that point, an in-office meeting will usually take place at the Guardian's office so he/she can meet with both parents individually.  The children should not attend this meeting because some of the topics of discussion will not be appropriate for them to be apart of.  Most Guardian's make home visits to the homes of each parent to make sure places are clean and appropriate for the children.  This is also a chance for the Guardian to witness the children interacting in each parent's home environment.The Guardian ad Litems will also want to meet privately with the children.  This may take place at their home or at school.  This time with the Guardian is important for the Guardian to speak with them without the influence of either parent.The Guardian ad Litem may also interview other people who know the children and the parties. These other people may include the teachers of the children, guidance counselors, grandparents, neighbors, and doctors.

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My Spouse Won't Let Me See My Children

Many times after parties separate, one of the parties withholds the children from the other spouse.  Sometimes for good reason.  But, if you are the parent not getting to spend time with your children this can be extremely frustrating.  But what can you do?

There is No Court Order in Place

If you and your spouse have just separated and neither of you have petitioned the family court for custody, then there is no court order in place governing the custody and visitation of your children.  In this case, if your spouse will not agree to allow you time with your children your main option in this case is to file an action in the family court with part of the relief you are seeking being the visitation or custody of your children.  At the time your action is filed, a Motion for Temporary Relief can also be filed where you can have a Temporary Hearing within a few weeks to have an order put in place for the pendency of your legal action.

There is an Order and My Spouse Ignores It

When there is already an order in place (whether it is a temporary or final order) either spouse can enforce the provisions of the order against the other spouse by what is known as a Contempt action.  If either of you are found to be in willful violation of the Family Court's order you could be punished by being held in contempt of court which holds penalties of up to one year in jail, community service and/or fines by the Court.  This is the "teeth" of the order and most people are not willing to chance jail time just because they do not want their spouse or ex-spouse to have time with the children.

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